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2018 DIGILAW 1788 (RAJ)

Prateek Sisodiya v. Surbhi Sisodiya

2018-08-27

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : SANJEEV PRAKASH SHARMA, J. Both the parties are present in person who have been identified by their respective counsel. 2. Instant writ petition has been preferred assailing the order passed by the learned Additional District & Sessions Judge No.1, Beawar, District Ajmer dated 25/05/2018 whereby the application moved by the petitioner and respondent under Section 13B read with Section 14 of the Hindu Marriage Act, 1955 for seeking divorce by mutual consent has been returned back treating the said application as premature. 3. It is noted that the petitioner Prateek Sisodiya and respondent Smt. Surbhi Sisodiya entered into a matrimonial knot on 31/10/2017 as per Hindu rites and rituals at Vijaynagar, Ajmer but as a result of disputes and differences arose between them at the initial stage itself which they had not been able to resolve and both of them did not wish to live together as husband and wife, both of them decided to separate and dissolve the marriage by mutual consent. It is stated that they did not have any other pressure or coercion on them while moving application for seeking divorce on mutual consent. Thus, the application was moved before the Additional District & Sessions Judge No. 1, Beawar on 20/03/2018. 4. Admittedly, the application has been moved within a period of one year from marriage. However, it is submitted that taking into consideration the provisions contained under Section 14 (1) of the Act of 1955 and being satisfied that both the applicants (husband and wife) would be facing exceptional hardship if they are forced to remain in matrimonial relations, the application ought not have been rejected at the threshold. 5. Both the parties are present before this Court and this Court finds that both of them are educated and have given their consent out of their free will. Both are agree to not live together as husband and wife and have stated that they want to dissolve their matrimonial relations. It is also to be noticed that both the parties are living separately now for more than the statutory period and there is no chance of reconciliation. 6. I have given my thoughtful consideration to the above facts. 7. It is also to be noticed that both the parties are living separately now for more than the statutory period and there is no chance of reconciliation. 6. I have given my thoughtful consideration to the above facts. 7. While the provisions of the Act of 1955 in regard to grant of divorce are statutory, however, the Apex Court in the case of Amardeep Singh v. Harveen Kaur (Civil Appeal No.11158/2017), decided on 12.09.2017 has noted as under:— 15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B (2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. 16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 8. In the aforesaid judgment of Amardeep Singh v. Harveen Kaur (supra), the Apex Court has also noted as under:— 21. 8. In the aforesaid judgment of Amardeep Singh v. Harveen Kaur (supra), the Apex Court has also noted as under:— 21. Since we are of the view that the period mentioned in Section 13 (B) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 9. The Delhi High Court in the case of Sh. Tarun Kumar Vaish v. Ms. Meenakshi Vaish: 2005 (82) DRJ 22 has considered the provisions under Section 14 of the Act of 1955 and granted divorce by accepting the application and exempting the waiting period. 10. Having noted the aforesaid judgment, this Court finds that Section 14 (1) of the Act of 1955 provides as under:— “14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that petitioner obtained leave to present the petition by any mis-representation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.” 11. A look at the order impugned shows that the learned Additional District and Sessions Judge has rejected the application on the ground that there is no averment relating to the conditions provided under Section 14 (2) of the Act of 1955 nor there is any averment relating to Section 13B of the Act of 1955 for getting the matter dissolved without waiting for the period provided therein. The petitioner and respondent, who are present in Court in person have pointed out that they both are educated and would suffer exceptional hardship if they are forced to live in marriage although they are separately living since 16/03/2018. The decision of the learned Court below to return the application moved under Section 13B of the Act of 1955 was not justified. While the judgments have been quoted, it appears that the learned court below has failed to take notice of the law laid down therein. The Delhi High Court in the case of Sh. Tarun Kumar Vaish v. Ms. Meenakshi Vaish (supra) has taken into consideration the earlier judgment passed by the Court in the case of Pooja Gupta wherein following observations were made:— “7. …………The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long a the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:— (a) the maturity and the comprehension of the spouses; (b) absence of coercion/intimidation/undue influence; (c) the duration of the marriage sought to be dissolved; (d) absence of any possibility of reconciliation; (e) lack of frivolity; (f) lack of misrepresentation or concealment (g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. In view of the law laid down by the Apex Court as well as Delhi High Court in the judgments (supra), this Court too is of the view that the provisions of Section 13B of the Act of 1955 are not of mandatory in nature and are directory. The Court lays down certain provisions to safeguard the marriage. However, if the parties to the marriage have firmly resolved not to continue and have serious disputes which cannot be resolved by way of any conciliation, it would be unjust upon them if, to maintain the sanctity of the legal provisions, they are force to remain in marriage. 12. Keeping in view the aforesaid aspects, this Court finds that both the applicants are mature enough and as there is no possibility of the conciliation and considering that they are at the young age of 26 and 25 years respectively and appear to be indepedent, this Court is satisfied that there is no undue influence on them and are firm to dissolve the marriage. Such a decision cannot be said to be taken in haste and in the circumstances, the benefit under proviso to Section 14 (2) as well as Section 13B of the Act of 1955 ought to be allowed. 13. Consequently, the writ petition is allowed. The order impugned dated 25/05/2018 passed by the Additional District and Sessions Judge No. 1, Beawar, District Ajmer is quashed and set aside. The marriage solemnized between the parties i.e. petitioner Prateek Sisodiya and respondent Smt. Surbhi Sisodiya is dissolved. On presenting this order, a decree to this effect shall be prepared and issued by the learned Additional District and Sessions Judge No. 1, Beawar, District Ajmer w.e.f. date the present order has been passed.